A plaintiff alleging fraud must demonstrate due diligence in discovering such fraud; failure to provide original title documents and delay in action can lead to rejection of plaint under CPC Order VII Rule 11.

ORDER :

1. This Civil Revision Petition is filed by the petitioner-M/s. Sushrutha Vishranthi Dhama Pvt. Ltd., defendant No.4 in O.S.No.472/2019, being aggrieved of the rejection of its application filed under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure. It is noticed that defendant No.1-respondent No.2 herein had also filed I.A.No.III in O.S.No.472/2019 seeking rejection of the plaint. The Trial Court has passed a common order dated 22.01.2024 while rejecting both the applications in I.A.Nos.III and IV filed by defendant Nos.1 and 4.

2. For the sake of convenience, the parties shall be referred to in terms of their ranking before the Trial Court.

3. The suit is filed by the plaintiff Dr.M.P.Somaprasad, seeking declaration that three registered sale deeds dated 09.10.2001, 22.12.2001 and 22.12.2001 executed by defendant No.2 allegedly, as GPA holder of the plaintiff, in favour of defendant No.1, as void, illegal, bogus, sham, nominal, fabricated and fraudulent documents; a declaration that registered sale deed dated 03.10.2005 executed by defendant No.1 in favour of defendant No.4 is also void and invalid; a direction to defendant No.4 to deliver vacant possession of the suit schedule properties to the plaintiff. The suit schedule properties consists of three items of property, all situated at Uttarahalli Manvarthe Kaval Village, Uttarahalli Hobli, Bangalore South Taluk, measuring 2 acres, 4 acres and 6 acres respectively.

4. The Trial Court has taken note of the averments made in the plaint that the sequence of events as to how the plaintiff acquired knowledge of alleged fraud played by defendant No.1; that the plaintiff and defendant No.1 are longtime friends and the plaintiff had entrusted defendant No.1 the work of getting the mutation and the pahani registered in the name of the plaintiff pertaining to the suit schedule properties. It is contended by the plaintiff that he left to United States of America in the month of July 1998 and returned to India during May 2002. The plaintiff was in regular contact with defendant No.1 and enquired about khata and pahani, but in the first week of September 2018 when plaintiff personally met defendant No.1 to enquire about the khata and pahani, the plaintiff got suspicious about the evasive answers given by defendant No.1. It is only thereafter that the plaintiff visited the suit schedule properties and found the developments on the suit schedule properties and on enquiry he came to know of the fraud played by defendant No.1. The Trial Court accepted the contention of the plaintiff that fraud was played on the plaintiff and the knowledge of fraud came to light during September 2018 when the plaintiff visited the suit schedule properties and from the date of knowledge of the fraud coming to the plaintiff, and prima facie the suit appears to have been filed within time. The Trial Court is of the opinion that it is a well settled position of law that question of limitation is a mixed question of law and facts which are required to be gone through after trial. It has opined that on the plain reading of the plaint it does not disclose that on the face of it the suit is barred by limitation.

5. Learned Senior Counsel Smt.Nalina Mayegowda, appearing for defendant No.4 submitted that in paragraph-34 of the plaint, the plaintiff has clearly stated that on 10.09.2018, when he inspected the properties, he found several buildings and constructions put up on the suit schedule properties and also in the lands of Dr.Joseph Lenz Pendanam and upon enquiry, the plaintiff found that defendant No.3 Dr.R.Subba Rao and others had constructed t